Kirby Estate Sues Marvel

In September of 2009, the four children of comic legend Jack Kirby sent out 45 “notices of termination” to the companies currently making money off of their father’s creations, including Marvel, Disney, Sony, Fox and Universal. Now, The Hollywood Reporter tells us the suit has officially been filed, seeking declaratory relief (the simple declaration of the status of a matter in controversy) as well as copyright termination for certain properties and, of course, profits. Marvel already filed their own suit back in January, citing the 1909 Copyright Act as the basis for Marvel being the “author” of any Kirby-created works, but with the Kirby estate shopping for a court date it will be interesting to see if Marvel responds with any further counter legal action. Certainly with the might of the House of Mouse behind them, it shouldn’t be difficult to do so.

The matter is a contentious one: On the one hand, you would be hard pressed to find a professional or fan who felt creators didn’t deserve payment, accolades and credit for their work. On the other hand, given that Mr. Kirby passed sixteen years ago, this comes across as a play for millions – if not tens of millions – of dollars that the plaintiffs feel entitled to. The complaint states:

With respect to Co-Owned Kirby Works, Plaintiffs are entitled to a pro rata percentage of any and all proceeds, compensation, monies, profits, gains and advantages from the exploitation of, or attributable to, in whole or in part, such Co-Owned Kirby Works

For clarity’s sake, the Co-Owned Kirby Works to which the documents refer include but are not limited to The Fantastic Four, Ant-Man, The Incredible Hulk, Thor, Nick Fury, Spider-Man, The Avengers and the X-Men, and just so we’re on the same page, pro rata means proportionate ratio, aka a whole lot of money.

Given that Kirby has never been an obscure figure, that his monumental contributions to the landscape of modern super-hero comic books have never been disputed, the suit clearly can’t be about regaining recognition or lost glory- right? Except a portion of the complaint states “Kirby was also not properly identified by Marvel as the author or co-author of the underlying works on which the Kirby Films and the Kirby Film Merchandise were based.”, referring to The Incredible Hulk and X-Men Origins: Wolverine. The plaintiffs state that the false advertisements “were made by Marvel with a willful disregard for the public interest”, and that the company’s actions have caused indefinable injury to the Kirby estate both financially and in reputation.

I would be curious as to what Len Wein thinks of that.

Of course, there’s a bonus to the hubbub if you think Fox is mutilating the Marvel properties it holds the rights to since, as THR points out, if the Kirby estate wins copyright termination they can license competing versions of the franchises.

When it comes down to it, Jack Kirby should have made a lot more money than he did. The characters he created with Stan Lee are not merely iconic, but altered the nature of the industry and remain some of the most beloved characters in the Marvel Universe – Lee, Ditko and Kirby made Marvel what it was and enabled it to become what it is now (I mean that in a good way). His relationship with the publisher was a rocky one to be sure, and not without reason; the complaint cites the creator’s mid-80s dispute with Marvel over the possession of his original artwork, which the plaintiffs say was not all returned. I think, ultimately, it’s the scope of this lawsuit that risks smacking of opportunism, but with fifty years of history in the pages of the complaint and millions of dollars to be made or lost in the future depending on its outcome, who’s to say the family hasn’t the right to pursue battles their father thought were already lost? What do you guys think?

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joshi38 5 years ago

I'd love to see this go before a judge. High profile cases like these hardly ever get to that stage, the involved parties preferring to settle out of court in order to save the public face. I don't have any preference either way really, the estate of Kirby deserves what's owed to him, but I still feel that this could go either way and only an impartial judge should make the decision.

Jack Kirby does deserve more credit than he has received. Stan Lee gets his dues, but people seem to forget that he and Jack Kirby collaborated a lot on Marvel's best heroes. He should at least have his name in the credits, at least DCE does that with all Superman merchandise, at the end of all the credits they say “Superman created by Joe Shuster and Jerry Seigal.” Marvel should at least do the same for Kirby. I hope this goes well and they just take back all the rights for characters owned by Fox! Lord knows they are just doing a horrific job with the rights that they have for these Marvel characters' movies! How can you make a terrible Wolverine and X-Men movie?! Its just a shame! Please remove the rights from them and give them back to Marvel/Disney. At least they are actually doing these movies right!

With all due respect, what was his contract? Was it work for hire or some other arrangement? If it was work-for-hire, he got paid for the work he did. You can't come after the fact and say you want more. How far would he have gotten with his ideas if he didn't have the backing of Marvel? If he felt cheated he could have created his own company. A lot of the artists that went over to Image in the '90s had the same issue. They created their own companies, but when they stopped drawing or writing the comics themselves, they ran into the same issue. They wanted to keep control of their company that they created. I could go on-and-on, but you get the point. Each side needed each other. I'm all for the little guy, but this smacks more of opportunism to me. That being said, not knowing all the details, maybe they have a legitimate right to it.

I hate to be in support of the “big guys” here but without knowing all the details, I don't think the Kirby estate has much to go on as this is all way after the fact now that billions of dollars are being made off his ideas. What if Marvel never became a power house like it did and comics were nothing more than cheap stories? Would the estate be suing for all of this then?

To modernize this case, many software programmers who work for corporations and create code and programs don't get to “own” what they create. Most have to sign a waiver when they're hired that any program or code that leads a program is property of the corporation. I don't know if contracts were written in the same manner when Kirby, et al, were creating these iconic characters, but I'm sure something similar was in place (or at least implied) then.

I'd be more sympathetic if it were Kirby himself going to court. The fact his kids are doing this just reeks of Money. If they actually won, and destroyed Marvel Comics, who'd be stupid enough to deal with them?

I've got mixed feelings on this. On one hand, I agree that all artists should be compensated for their works even after they leave the original medium and crossover into movies and/or television. Or even get fair recognition for any work(s) that they created independently or as a collaboration. But this smacks of grave robbing by his family now that Marvel is a Disney company and see a larger payday than going after Marvel alone. I hope that the family does settle it and get Jack the recognition he deserves for all of those iconic characters he was instrumental in bringing to life in the comic books, and not chase the big payday.

I don't think it's so much Jack Kirby deserved more credit than he got – he's gotten *plenty* of that. In fact I've always thought his artwork was a bit overrated, but he was a workaholic and certainly contributed to the success of Marvel's superheroes. His dynamic art was a forerunner of modern sequential art. I think that's already been recognized by many people, but what he DID deserve more of what he got is money. For all that he did, he certainly would have been entitled to some sort of share of Marvel's profits from publishing all the characters he helped make famous. It's too bad he isn't alive to receive any small parts in all these Marvel movies as Stan Lee did – it would have been sweet to see Kirby with Stan during the wedding in Fantastic Four 2, for example, just like in the comics.

I do think this is a play by his family for money, but, unfortunately, I can't really blame them, and I can't really get angry at any of them, because in the end if Marvel loses this, it's probably karma biting them in the rear end. And I wouldn't be surprised if Kirby's family could use the money. I could see this going either way.

Part of it is that Marvel says Kirby was work-for-hire whereas the Kirby estate argues that due to the economy and the lack of respect for the industry at that time, Kirby was a freelancer to whom Marvel felt zero obligation, and once the company took off- which was shortly after Kirby left, due to largely creative differences- Kirby's name was let out of the equation and he was never recompensed for the success his creations brought the company. It's a sort of nebulous situation. As a fan of what Marvel is doing with these properties now, I don't want their gameplan messed up, but appreciating what Kirby did, I feel like, well, they do kind of owe the guy, and by extension his family.

Yeah, that's the awkward part. Like, suing Marvel for the return of ALL of their father's original work? I'd get that. Wanting his name on more things, or reprint runs of his comics, or even, sure, get some damages for returns he never received- I understand all that. But the sheer scope of what's financially involved if they win is… staggering. And Kirby isn't an unknown, he has legions of supporters. So it comes across as kind of destructive and like they're hunting for a pay day. But I don't doubt that having watched their father continue his work into 90s without any of the media attention, support or fanfare that Stan Lee got must have stung. I can't say that I blame his family, now.

If Stan and Jack had been in the wedding in FF2 I would have a) not known about it for forever because I avoided that movie like the plague until I GOT the plague, was bedridden, and had to watch it on FX and b) cried like a baby.

What gets me is the fact that Stan Lee appears to be getting more and more credit every year as the “sole” creator of the Marvel Universe! I like Stan; but I also like the rest of the Marvel Bullpen for doing a lot of the work also to help create the Marvel Age of Comics, both in the Golden Age as Timely and in the 60's formation. Stan appears to make a lot of money for what he has done. What can't the others get some of the profits? I wish us fans could get some money back for helping to make Stan rich! LOL.

We all love and enjoy Marvel but this is one of the realities of big business behind the iron curtain of entertainment. This is Marvel's opportunity to make a greater gain out of being noble and doing what is ethically right even though it may be contractually wrong etc. If Marvel/Disney was to secretly meet with the Kirby family and settle this once and for all with a lucrative settlement, there is a possibility that Marvel can regain all of it's rights back by allowing and or secretly backing The Kirby's to win back all the properties and Marvel/Disney could pay a hefty but substantially cheaper price to the Kirby's than they would have to trying to buy all the rights back from the studios.Marvel/Disney doesn't need to get bullheaded here, this is a great loop hole and opportunity for them, they'd be better off working with Kirby's.

Unless their is something in the contracts that would hold Marvel/Disney harmless, Sony and Fox would sue and what would come of the properties on the production schedules?? It's really interesting and with possible future fluctuating stock prospects opportunities abound. Thanks Amanda and Writers/Editors of ScreenRant for keeping us informed…

I'd be more sympathetic to the Kirbys' cause if this wasn't happening AFTER Hollywood learned how to make comic book movies good, AFTER the amazing success of Iron Man, AFTER all the groundwork has been laid for the Avengers movie…

There's a reason the kids didn't sue in the '90's. Getting the respect for their father's work that they feel he deserves doesn't appear to be in the equation.

I agree with that, I'm sure that Sony and Fox would try to counter sue but I do still believe that it would be in Disney/Marvel's best interest to work with The Kirby's. If Sony and Fox choose not too then that would just make Fox and Sony look even worse and I think the courts would have less lenience towards Fox and Sony after seeing Disney/Marvel work with the Kirby's while the other studios are being hard asses.

That is a very, VERY interesting thought. I read an article (that I'm now trying to find…) about how the Fox films basically equate to ashcans. Massively expensive ashcan movies that serve no purpose but to maintain their grip on the rights to the properties, which I felt was an accurate view on a number of levels. With the recognition of the Spider-Man and Wolverine franchises, though, there is no way either company relinquishes their rights without a massive legal battle.

Kirby definitely deserves his props. Some of the properties under contention, though… it's a little thin. Kirby created the X-Men with Lee, can't be argued, but the core cast of that book has changed more than any other. The title has become a banner for a team with borderline ridiculous amounts of characters, from a number of different creators. When I think X-Men, I don't immediately associate with Jack Kirby the way I do when i think FF or Captain America. So that part of the complaint I find to be a little over zealous.

Then again, they probably want me to think Kirby when I think X-Men, and that's part of the point. Oh, well. Those movies are dead to me, anyway.

I can't get behind the Kirby Estate here. They had no hand in the characters or the comics, so they shouldn't get anything. Someone mentioned the point that Kirby himself would have wanted his family to have the money, which is probably correct, but that still doesn't mean that they deserve it.

I do agree Kirby's name should get put out there more often. I've always known that Stan Lee and Jack Kirby were a team and that together they created most of Marvel's high-value characters, so I guess I never noticed he doesn't really get as much recognition as Stan.

I do feel a little sorry for the family though. If they really wanted to win anything, they should have done this last year, before the merger with Disney. Disney might decide to be nice and settle, but if they really want to win this suit, there's no way they won't.

Well I know one thing man It's certainly going to get interesting. I hope they don't completely mess up where nothing can get put into production. I'm certainly with you on hoping Disney/Marvel come out of this with the properties back too…